This was an action of certiorari, seeking to have the court below declare null and void a certain record made by the supervisors, annulling the action of the commissioners of highways granting petition to change a certain highway in said county.
The order of the commissioners was filed with the town clerk on the 13th day of December, A. D. 1879, and an appeal was taken from such order to three supervisors on the 18th day of December of the same year. The latter fixed the 30th day of the month as the time they would meet to hear the appeal. It appears that the supervisors made an order vacating and annulling the order of the commissioners on December 31, 1879, and a copy of such order was sent by the justice of the peace, to whom the original was sent by the supervisors to the town clerk on the 2d day of January, A. D. 1880, but not until the 29th of the last named month was the original order sent to the town clerk who refused to file it because it was not in time, but kept it with him among the papers of his office.
Sec. 72, Chap. 121, R. S., of the road law, requires the commissioners of highways in like case to file their order in case of refusal of a petition to alter, change or lay out a road, in the office of the town clerk within ten days, and by section 99 of the same statute, confers the same powers on the supervisors in case of appeal that is given to the commissioners. In this case the supervisors failed to file their order within the ten days, and the filing of the copy, which is a part of the record, was not a compliance with the statute.
For this reason the record of the order was void, and the court below did not err in quashing it. But the court rendered judgment for costs against the supervisors, which we think was error. They were not necessary parties and had no interest in the result of the suit. Neither of them resided in the town where the road was situate, their duties were ended when they made the order, and they should not be held responsible for costs in case the order was not legal; no such penalty should be attached to their act.
The judgment against them for costs is therefore reversed and the order of the court below in quashing the record is affirmed.